The Chicago Daily Law Bulletin Published Timothy Liam EPSTEIN'S Article Entitled, "Parochial school looks to even the playing field over conference rule."

A lawsuit filed recently in the Southern District of Alabama could have national effects on the way private and public high school sports teams compete against each other in the future.

A few weeks ago, St. Paul’s Episcopal School in Mobile, Ala., filed suit seeking an injunction to stop a new rule that forces it to play in a larger conference. St. Paul’s Episcopal School v. Alabama High School Athletic Association, et al., No. CV-18-241 (S.D. Ala. Filed May 24, 2018).

The Alabama High School Athletic Association recently changed its rules to compel any private school that wins a state championship to play in a larger conference, regardless of their enrollment numbers. For St. Paul’s, a school with only 310 upper-class students (only eligible athletes are counted for purpose of the rule), this rule poses a real threat to the students’ ability to participate in fair and safe competition.

This threat is especially significant for St. Paul’s, who is already playing in a conference that greatly outsizes its student population.

In Alabama, private schools like St. Paul’s are forced up a conference level regardless of their competitiveness by a multiplier rule. The multiplier rule equates a student at an Alabama private school to 1.35 students in one of the state’s public schools.

Due to this inflated number, St. Paul’s is already competing in a conference designed for schools with nearly 100 more upperclassmen enrolled than at St. Paul’s. Under the new rule, called the Competitive Balance Rule, St. Paul’s will end up in a conference two levels higher than its enrollment would generally qualify for absent the multiplier and the balance rule.

In its complaint, St. Paul’s alleges that the balance rule is unconstitutional under the U.S. Constitution’s 14th Amendment, arguing that the rule is arbitrary and not rationally related to the governing body’s ultimate goal.

The athletic association’s goal is to promote safe and fair athletic competition among the public and private high schools of Alabama. By forcing successful private schools into higher conferences, the association is hoping to level the playing field and mitigate the alleged advantages private high schools have in competition with public schools.

These alleged advantages include the ability to draw students from a larger geographic pool than boundaries set for public schools, and, for some private schools, the financial resources to better support athletic programs.

St. Paul’s argues that this goal has no rational relationship to the balance rule and, therefore, is unconstitutional. The complaint touches extensively on the breakdown of state championship wins between private and public high schools, the pervasiveness of open enrollment in Alabama and the very real risk of injury for students who are forced to play in a conference with a larger student body full of larger student athletes.

Based on the discussion of these issues in St. Paul’s complaint, the rational basis argument may be successful. In order for St. Paul’s to be successful, it must show that the connection between the balance rule and the goal of safe and fair competition is so attenuated and irrational that it is unconstitutional. San Antonio Independent School District v. Rodriguez, 93 S. Ct. 1278 (1973).

If the goal is to promote safety for student athletes, it is hard to understand the association’s logic. St. Paul’s complaint provides substantial findings and expert testimony on the dangers of having small schools compete against larger schools.

At a large school with a greater pool to choose from, student athletes (superstars excluded) generally see less playing time on the field compared to small schools with smaller rosters.

Large schools can also afford to cycle out players to rest. This issue is especially relevant in football, which is the focus of St. Paul’s complaint, where players at small schools often have to play both defensive and offensive positions.

Large schools also typically have a greater number of large athletes. In collision sports, the risk of injury is greater when pitting smaller, less-rested players against much larger players with more time to rest and recharge.

In addition to not promoting the association’s goal of safety, St. Paul’s argues that the new rule would not actually promote fairer competition in Alabama. Open enrollment is a commonly cited advantage by proponents of the balance rule; however, Alabama’s public schools also engage in open enrollment.

The Accountability Act of 2013 allows Alabamans who qualify to transfer to “any public or qualifying private school of their choice,” regardless of district lines. Ala. Code Section 16-6D-4(13)(a).

Some counties also allow their students to transfer outside the district to participate in a specific program offered, including athletics. This open enrollment for all further degrades any rational basis the association may claim for invoking the balance rule and multiplier rules to promote fairness and safety.

Nevertheless, the proponents of the balance rule argue that rules allowing public school students to transfer were not enacted without cause. Nationwide, private schools have continuously won a disproportionate amount of state championships. Transfer rules were crafted in response to that trend but, private schools still dominate, which suggests the rules may not be tailored to the goal of promoting fairer competition.

St. Paul’s alleges that the motivations for the balance rule are not based on a desire to promote fair competition, but rather on animus toward private schools.

If St. Paul’s can convince the court that animus toward private schools is motivating this rule, it has a good chance of getting an injunction. Courts will look to the legislative history and actions of those who instituted the rule to infer if there is animus and thus if an act is not rationally related to a legitimate state interest.

St. Paul’s at the outset appears to be in a good position. Their situation is unique to many other challenges to these types of rules because the balance rule would be in addition to a multiplier rule already in place. Other governing bodies have not piled on additional rules affecting private schools.

Since the multiplier rule, which was commonly used around the country, has not curbed the number of private school championships, it is difficult to see how another rule bumping private schools to a higher level of competition (i.e. larger school populations) is rationally related to promoting fair and safe competition.

With a weak connection to fairness and seemingly no link to improved safety, St. Paul’s has a strong constitutional challenge to the new rule. Other high school associations should take note.